34122/23

FOURTH SECTION CASE OF LEOCÁDIO DE LEMOS v. PORTUGAL (Application no. 34122/23)             JUDGMENT   STRASBOURG 19 May 2026   This judgment is final but it may be subject to editorial revision. In the case of Leocádio de Lemos v. Portugal, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:  Anne Louise Bormann, President,  Ana Maria Guerra Martins,  Sebastian Răduleţu, judges, and Crina Kaufman, Acting Deputy Section Registrar, Having regard to: the application (no. 34122/23) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 September 2023 by a Portuguese national, Mr Joel Leocádio de Lemos (“the applicant”), who was born in 1984, lives in Silveira and was represented by Mr V. Carreto, a lawyer practising in Torres Vedras; the decision to give notice of the complaint concerning the length of the review of the lawfulness of the applicant’s pre‑trial detention to the Portuguese Government (“the Government”), represented by their Agent, Ms H. Martins Leitão, Deputy Attorney‑General, and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated in private on 28 April 2026, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.  The application concerns the alleged excessive length of the review of the lawfulness of the applicant’s pre‑trial detention. The applicant relied on Article 5 §§ 3 and 4 and Article 13 of the Convention. 2.  Criminal proceedings were instituted against the applicant for drug trafficking. On 10 November 2017 he was questioned by the investigating judge at the Torres Vedras Criminal Court. On the same day the investigating judge decided to remand him in custody. 3.  On 27 November 2017 the applicant requested that the investigating judge place him under house arrest with electronic surveillance. That request was dismissed on 28 November 2017. 4.  On 4 December 2017 the applicant appealed against the decision of the investigating judge to remand him in custody (see paragraph 2 above) to the Lisbon Court of Appeal. 5.  On 5 December 2017 the Torres Vedras Criminal Court declared the appeal admissible. 6.  On 5 January 2018 the public prosecutor at the Torres Vedras Criminal Court submitted observations on the applicant’s appeal. 7.  On 23 January 2018 the file was sent to the Lisbon Court of Appeal. 8.  On 30 January 2018 the public prosecutor at the Lisbon Court of Appeal issued an opinion on the appeal, pursuant to Article 416 of the Code of Criminal Procedure. On 1 February 2018 the applicant was notified of the opinion and given ten days to reply, pursuant to Article 417 of the Code of Criminal Procedure. The applicant replied on 8 February 2018. 9.  On 28 February 2018 the Lisbon Court of Appeal dismissed the appeal and upheld the investigating judge’s decision of 10 November 2017 to place the applicant in pre‑trial detention. 10.  On 1 March 2018 the Lisbon Court of Appeal dismissed a further appeal lodged by the applicant on 11 December 2017 against the decision of the investigating judge rejecting his request to be placed under house arrest with electronic surveillance. 11.  On an unspecified date in 2018 the applicant brought an action against the State in the Lisbon Administrative Court, claiming 3,000 euros (EUR) for the damage caused by the alleged excessive length of the review of his pre‑trial detention. 12.  On 25 June 2023 the Lisbon Administrative Court dismissed the action. It observed that the 30‑day time limit to decide the appeal in question set out in Article 219 § 1 of the Code of Criminal Procedure had been complied with. It further noted that, as per a judgment of the Supreme Court of 16 March 2018, such an appeal neither suspended the proceedings nor barred the investigating judge from suspending the pre‑trial detention or replacing it with another measure. It took the view that the time taken to render a decision on the review was not therefore incompatible with Article 5 § 4 of the Convention and that, in any event, it was necessary to ensure compliance with procedural rules, notably with the adversarial principle and the requirement for a three‑judge panel to give a decision on the appeals. 13.  The applicant was released from pre‑trial detention on 28 November 2018. 14.  Relying on Article 5 §§ 3 and 4 and Article 13 of the Convention, the applicant complained that the examination of his appeal against his pre‑trial detention had been excessively long and that he had lacked an effective domestic remedy in that regard. THE COURT’S ASSESSMENT 15.  The Court, being the master of the characterisation to be given in law to the facts of the case, considers that the applicant’s complaint (see paragraph 14 above) should be examined from the standpoint of Article 5 § 4 of the Convention alone (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). 16.  It notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible. 17.  The general principles concerning the length of proceedings for review of the lawfulness of detention have been summarised in Ilnseher v. Germany ([GC], nos. 10211/12 and 27505/14, §§ 251-56, 4 December 2018), and Martins O’Neill Pedrosa v. Portugal (no. 55214/15, §§ 29-41 and 45-46, 14 February 2017). Where the proceedings were conducted at more than one level of jurisdiction, an overall assessment of the case is to be performed to determine whether the requirement that a decision be given “speedily” has been complied with. Where the original detention order was imposed by a court (that is, by an independent and impartial judicial body) in a procedure offering appropriate guarantees of due process, and where the domestic law provides for a system of appeal, longer periods of review in proceedings before a second‑instance court can be tolerated (Ilnseher, cited above, § 255). 18.  In the present case, the Court notes that the applicant lodged his appeal against the decision of the investigating judge to place him in pre‑trial detention on 4 December 2017 (see paragraph 4 above). A decision on the appeal was given by the Lisbon Court of Appeal on 28 February 2018, that is 85 days after the appeal was lodged (see paragraph 9 above). 19.  It appears that the case before the Lisbon Court of Appeal was not overly complex, neither legally nor factually (contrast Ilnseher, cited above, §§ 262-63 and 266-67). Furthermore, the appellate court in the present case is an ordinary court and not a constitutional court (compare Ilnseher, cited above, § 270). 20.  As regards the applicant’s conduct in the domestic proceedings, there is nothing in the material before the Court to suggest that the applicant caused delays in the examination of his appeals. 21.  Furthermore, the Government did not provide any adequate justification for the delays in the appeal proceedings. Notably, the compliance with the adversarial principle cannot alone justify non‑compliance with the “speediness” requirement of Article 5 § 4 of the Convention (see Martins O’Neill Pedrosa, cited above, §§ 46-47). 22.  In view of the foregoing, the Court finds that the time taken by the Lisbon Court of Appeal to adopt a decision was excessive in the light of the interests protected (ibid, § 48; and Piotr Baranowski v. Poland, no. 39742/05, §§ 67-68, 2 October 2007). 23.  There has accordingly been a violation of Article 5 § 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 24.  The applicant claimed 3,500 euros (EUR) in respect of non‑pecuniary damage and EUR 1,500 in respect of costs and expenses incurred before the domestic courts and EUR 1,050 for those incurred before the Court. 25.  The Government contested those claims. They argued that a judgment finding a violation of the Convention would constitute just satisfaction for any non‑pecuniary damage that might have been sustained in the present case. The Government considered the claims for costs and expenses to be excessive and unsubstantiated by any evidence. 26.  Having given due consideration to all the circumstances of the present case, the Court accepts that the applicant has suffered some non‑pecuniary damage which cannot be sufficiently compensated for by the finding of a violation alone. Making its assessment on an equitable basis, the Court awards the applicant EUR 3,250 in respect of non‑pecuniary damage. 27.  According to the Court’s case‑law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum (see Merabishvili v. Georgia [GC], no. 72508/13, §§ 370-72, 28 November 2017). In the present case, the applicant did not provide any evidence substantiating his claim (Rule 60 § 2 of the Rules of Court). The Court therefore rejects the applicant’s claim. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 5 § 4 of the Convention; Holds      that the respondent State is to pay the applicant, within three months, EUR 3,250 (three thousand two hundred and fifty euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage;      that from the expiry of the above‑mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 19 May 2026, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.    Crina Kaufman Anne Louise Bormann  Acting Deputy Registrar President